Federal EA Reform at the Cross-Roads

For example, an independent Expert Panel was established in mid-August to undertake various forms of consultation in the coming months, and to submit a report in January 2017 containing its findings and recommendations for EA reform.

Over the past month, the Expert Panel has been busy: it launched its own website; identified broad EA “themes” and questions under consideration; scheduled upcoming public and indigenous consultation events in numerous cities; and live-streamed a technical briefing on the EA review.

In addition, a Multi-Interest Advisory Committee (MIAC) has been established to provide input to the Expert Panel on key EA matters. The MIAC held its first meeting in late August, and it consists of representatives from industry, indigenous communities and environmental groups across Canada (including CELA as an alternate member).

This initial flurry of activity certainly leaves the impression that the EA review is well underway, and that it is only a matter of time before Parliament overturns the ill-conceived EA reforms enacted by the previous government.

However, these laudable efforts seem to beg a fundamental question: what exactly is the federal EA review aiming to deliver?

Prime Minister Trudeau’s mandate letter to Environment Minister McKenna indicates that the purpose of the EA review is to “regain public trust”, ensure “thorough” EA processes, and require science-based decisions that “serve the public interest.” But how can these broad objectives be best achieved?

For example, will the EA review focus on merely finetuning the current (and wholly unacceptable) status quo under the Canadian Environmental Assessment Act, 2012? Alternatively, will the EA review result in the restoration of the repealed Canadian Environmental Assessment Act, 1992, despite some of its problematic provisions? Or will the EA review pave the way for a new, forward-looking EA regime that requires robust “sustainability assessments”, rather than proponents’ self-serving evaluations of the significance, likelihood, or mitigation of adverse environmental effects?

These and other key questions were considered by practitioners, academics, civil society groups, and members of indigenous communities at a well-attended “EA Summit” held in Ottawa earlier this year. The EA Summit proceedings and discussion papers are now available online, and there was strong support among Summit participants for the “next generation” EA model espoused by Professors Gibson, Doelle and Sinclair.

These authors correctly contend that Canadian jurisdictions should shift from traditional (and narrowly focused) “first generation” EA regimes to a more comprehensive and participatory “sustainability assessment” approach. Among other things, this new EA vision includes strategic- and regional-level assessment of plans, policies and programs, and it emphasizes informed decision-making that delivers long-term, multiple, mutually reinforcing and fairly distributed societal benefits from approved undertakings.

At the present time, however, it is unclear whether – or to what extent – the much-needed transition to “next generation” EA will be at the forefront of the Expert Panel’s deliberations, particularly given the compressed timeframe for the completion of the Panel’s work.

In addition, the Government’s Terms of Reference for the EA review stipulate that the Panel is to consider “how” EA processes are being conducted by the National Energy Board, the Canadian Nuclear Safety Commission, and the Canadian Environmental Assessment Agency under the current legislation. This is indeed an important consideration, but it overlooks the larger public policy question of whether these entities should be conducting EAs at all, or whether there are other (or more preferable) institutional options for ensuring EA quality, credibility and accountability.

CELA concludes that the EA review offers an important, once-in-a-generation opportunity to hit the reset button and to fundamentally recast the federal EA processes in a bold new direction for the future. Accordingly, the Government of Canada should not squander this opportunity by pursuing piecemeal legislative reforms, or implementing administrative tweaks, which do not fix the deficient EA processes now in place at the federal level.